Ten Steelworkers, Five Justices, and the Commerce Clause

If there had been Twitter, instead of news tickers, in February, 1937, reporters and other observers would have been using it to follow the arguments before the Supreme Court in National Labor Relations Board v. Jones & Laughlin Steel Corp. It was the central case of five, argued in one extraordinary round, which challenged the constitutionality of the National Labor Relations Act, also known as the Wagner Act. The J. & L. dispute involved ten steelworkers who had been fired from the company’s Aliquippa, Pennsylvania, mills for trying to organize a union. As with this week’s hearings on the Affordable Care Act, also known as Obamacare, those deliberations were being watched with an anxiety that extended well beyond concern for the protagonists in the suit, to an entire vision of government.

Jones & Laughlin and its companion cases involved the Commerce Clause, the constitutional engine for Franklin D. Roosevelt’s urgent New Deal efforts to pull the country out of the Great Depression. (It gives Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”) The post-1937 conception of the Commerce Clause has, as Jeffrey Toobin noted yesterday, become an assumed part of any number of government efforts; it is the defense for challenges to the individual mandate but also to other aspects of the A.C.A., like provisions protecting people with preëxisting conditions. Before the Supreme Court this week, as the premise of Jones & Laughlin was challenged, there was a certain forgetfulness about what was at stake in the case. Ten steelworkers have become phantoms, along with the five Justices who voted in their favor. There were almost only four.

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The J. & L. case was invoked in one of several exchanges that contributed to the view, after the Court’s session Tuesday, that Solicitor General Donald Verrilli, Jr., had turned in a weak performance. He was defending the individual mandate while also attempting to address an earlier question from Justice Anthony Kennedy about whether “this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce.”

GENERAL VERRILLI: [I]n the sense that it’s novel, this provision is novel in the same way, or unprecedented in the same way, that the Sherman Act was unprecedented when the Court upheld it in the Northern Securities case; or the Packers and Stockyards Act was unprecedented when the Court upheld it, or the National Labor Relations Act was unprecedented when the Court upheld it in Jones and Laughlin; or the—the dairy price supports in Wrightwood Dairy and Rock Royal….

JUSTICE SCALIA: Oh, no, it’s not. They all involved commerce. There was no doubt that was what regulated was commerce.

Actually, there was; Scalia is wrong. The J. & L. decisions are full of discussions of the distinction between “manufacture” and “commerce,” which now seem patently spurious, but were hardly settled at the time. (The company, for example, made a point of arguing that even though its ore came from other states, it sat for months in a stockpile in Pennsylvania, out of the stream of commerce.) As Jeff Shesol writes in “Supreme Power,” his excellent study of F.D.R.’s relations with the Court, even members of the Administration thought they were on shaky constitutional ground, given the precedents at the time: “Indeed, with its constitutionality in question, the act was brought to a standstill by lower court injunctions and corporate defiance.”

The Roosevelt Administration hadn’t even wanted the Wagner Act to be the test; it was just that the Court’s majority, which had appeared not only skeptical of but offended by F.D.R.’s’s urgent efforts to pull the country out of the Great Depression, had thrown out so many New Deal agencies and programs that this was pretty much all that was left. Despair and anger at how the Justices might rule had driven Roosevelt to float what became known as the Court-packing scheme. That hadn’t worked out so well. F.D.R.’s lawyers had to go into the fight with the Justices they had. To even the odds, Shesol writes,

They scoured the dockets of appellate courts across the country for labor cases that combined the most abusive practices, the most sympathetic victims, and the most auspicious legal issues.

“Sympathetic victims”—of what? As it happens, my great-grandfather worked and died in the very J. & L. mills in question, a dozen years before the ten steelworkers were fired, and a few months before my grandmother was born. He was crushed by a wayward crane; his casket was closed. In the majority decision in the case, Charles Evans Hughes, the Chief Justice, said,

Practically all the factual evidence in the case, except that which dealt with the nature of respondent’s business, concerned its relations with the employees in the Aliquippa plant whose discharge was the subject of the complaint. These employees were active leaders in the labor union. Several were officers, and others were leaders of particular groups. Two of the employees were motor inspectors; one was a tractor driver; three were crane operators; one was a washer in the coke plant, and three were laborers….

It is sufficient to say that the evidence supports the findings of the Board that respondent discharged these men “because of their union activity and for the purpose of discouraging membership in the union.”

Legally that would be, as Hughes wrote, sufficient. But one wonders what those three crane operators saw, both in the dangerous operations of the mill and in the years of bitter joblessness at the depths of the Depression, and how much such stories matter, then and now. Both sides engage in storytelling. The 1937 version of the “forced to buy broccoli” argument that Justice Scalia invoked yesterday, was the contention that, if a company couldn’t fire ten men for no reason other than that they wanted a union, all staffing decisions would soon be dictated by federal bureaucrats. And more than that, the government would have the right to tell people how many babies they could have in order to regulate the size of the labor pool. Seventy-five years later, that hasn’t come to pass.

There is a larger story, too. The fifth vote that decided the case was that of Owen Roberts—known as the “switch in time that saved Nine.” His vote was, in many ways, an accession to politics, but more broadly to the reality of the economy and country. (Verrilli and other observers of Anthony Kennedy’s demeanor may be comforted by contemporary observations, which Shesol quotes, that Roberts was “quiet and sulky” and “rather ominously silent” during arguments.)

Part of the majesty of the Constitution is that the firmament the framers imagined includes fixed and moving points, all brilliant. The Court is not a constitutional-reckoning machine (the arguments of originalists that it is, or ought to be, is belied by their own often politicized decisions). Terms like interstate commerce conjure up different worlds in different centuries. When F.D.R. began his first term, thirteen million Americans, a quarter of the workforce, were unemployed; today, almost fifty million Americans don’t have health insurance. Both numbers only partially quantify the distorting effect that these two crises have had on our economy. Both also speak to the truth that individuals are not isolated, that there are mutual exchanges and obligations that we can ignore but not dissipate. One of the many almost sarcastic notes in the minority decision in Jones & Laughlin is that its relation to interstate commerce is “indirect and remote in the highest degree,” because only “ten men out of 10,000 were discharged.” How much do ten steelworkers matter to the rest of us? A great deal.